Opinion
W.C. No. 4-570-204.
February 1, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 18, 2007, that denied the claim for certain medical benefits and for temporary total disability (TTD) benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted work-related injury to her right upper extremity on May 13, 2002. The claimant testified that she first had left upper extremity symptoms in 2002. However, contrary to the claimant's testimony, the ALJ found that she did not report to any of her physicians that she also suffered left upper extremity problems prior to July 2005. On June 15, 2005, the claimant began work as an administrative assistant for Stillwell Foot Ankle (Stillwell). This job required keyboarding data entry, setting up charts, phone work and filing. The claimant was unable to tolerate a 40-hour workweek and resigned her position after two weeks. On July 7, 2005, Dr. Greenslade noted that the claimant had difficulty with the job due to long hours and complained of some mild overuse symptoms in her left elbow, left shoulder and right shoulder. The claimant took a vacation to the east coast in 2006 and upon her return, her condition was substantially worse. The claimant was referred to Dave Schank for physical therapy.
The ALJ found that the claimant failed to prove by a preponderance of the evidence that her left upper extremity problems were a natural and proximate consequence of the admitted right upper extremity industrial injury. The ALJ found that the claimant's work at Stillwell constituted an intervening cause of the left arm problems.
Consequently the ALJ concluded that the claimant was not entitled to TTD on account of the admitted work injury and the medical treatment for the left upper extremity was not reasonably necessary to cure or relieve the effects of the work injury. The ALJ further concluded that the preponderance of the evidence failed to demonstrate that the physical therapy by Dave Schank was reasonably necessary to cure or relieve the effects of the work injury.
I.
The claimant first contends that the ALJ erred in finding that her need for physical therapy was not related to the compensable injury. The claimant argues that the ALJ misunderstood Dr. Lopez's testimony. The claimant also argues that the ALJ misapprehended Dr. Lopez's opinion and that he did not actually believe that the claimant's need for physical therapy was due to her air travel rather than to her injury.
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here the ALJ found that Dr. Lopez testified that the claimant probably would not have needed physical therapy in 2006 but for the aggravation of her condition that occurred on her vacation. Findings of Fact, Conclusions of Law, and Order at 6, § 21 (unpaginated) (hereinafter Order). The ALJ found that Dr. Lopez's testimony was persuasive that the physical therapy was necessitated by the claimant's travel in connection with her vacation. Order at 7, § 27.
The claimant's assertion notwithstanding, Dr. Lopez's testimony fully supports the ALJ's findings and the conclusion. Dr. Lopez testified that the claimant had suffered an aggravation of her arm symptoms related to a trip that she had taken and recommended she see a physical therapist. Lopez Depo. at 7 8. Dr. Lopez also testified that but for her going on the trip, she would not have needed the physical therapy at that time. Lopez Depo. at 31-32.
The claimant cites other portions of Dr. Lopez's testimony, which suggest that he was not aware of any specific mechanism of injury that would have constituted an intervening injury to the claimant's right arm as a result of her trip. However, the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). In our opinion, the ALJ's interpretation of Dr. Lopez's testimony is reasonable.
The claimant next argues that the ALJ erred in crediting Dr. Pitzer's opinion that the proposed medical treatment was "palliative" only. However, we are unpersuaded that Dr. Pitzer's expert opinion is incredible as a matter of law, and the critical question for our review is whether the ALJ's factual determination is supported by substantial evidence in the record.
The claimant's arguments notwithstanding, there is substantial evidence in the record to support the ALJ's determination that the need for medical treatment was not reasonably necessary. The ALJ found that Dr. Pitzer had stated that the therapy received from Dave Schank was not medically necessary because the claimant had access to multiple palliative treatment options at home and all such care was duplicative. Order at 5, § 25. This finding is fully supported in the record. Exhibit T at 301. It is also important to note that the ALJ also found with record support that Dr. Pitzer concluded that the left arm problems of the claimant were not related to the work injury. See Exhibit G at 190; Exhibit T at 301.
It is certainly true that the record contains conflicting evidence from which the ALJ might have reached a different conclusion. However, we are not free to substitute our judgment for that of the ALJ concerning the weight and credibility of the expert medical opinions, or the proper inferences to be drawn therefrom. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Thus, the denial of benefits must be upheld.
II.
The claimant next contends that the ALJ erred in denying the claimant request for TTD benefits. The claimant argues that the facts in this case compel a conclusion that her left upper extremity complaints are related to the original compensable condition and not as the ALJ found related to the claimant's work at Stillwell, which the ALJ found constituted an intervening event. We again disagree.
Generally, the question of whether an injury is the result of an efficient intervening cause is a question of fact for determination by the ALJ. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002); see also, University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). Consequently, as noted above we must uphold the ALJ's determination if supported by substantial evidence in the record.
The claimant's reliance on Marin v. Compass Logistics, Inc., W.C. No. 4-520-473 (November 7, 2002) is misplaced. In Marin, the ALJ found that the claimant's left shoulder injury was the natural and proximate result of a previous right shoulder injury, where the claimant pushed a cart at work and experienced left shoulder symptoms as a result of the right shoulder injury. In Marin, the Panel also noted that whether an injury is a result of an efficient intervening cause is a question of fact. Because the evidence supported a finding of a causal connection with the original injury to the right shoulder the Panel affirmed the award of benefits in Marin.
However, Marin is not dispositive of the circumstances here and does not compel a similar result. Here, the ALJ found that contrary to the claimant's testimony she did not report any left upper extremity problems until 2005, at the time of her employment with the subsequent employer Stillwell. The claimant does not dispute the lack of support in the medical record for her claim of problems with her left upper extremity problems before she worked at Stillwell. It is undisputed that the claimant reported left arm problems after beginning her employment at Stillwell. Exhibit E at 188; Exhibit F at 183. While the temporal relationship between the onset of left upper extremity problems and her employment with Stillwell may not compel a finding of a causal connection, it certainly can be considered by the ALJ. The circumstances here are that the claimant returned to work at the subsequent employer, Stillwell, performed extensive use of her left arm and developed acute problems in her left arm. Dr. Pitzer opined that the claimant's left upper extremity problems were related to her job duties at Stillwell. Exhibit G at 190; Pitzer Depo. at 15-16. In our opinion, there is substantial evidence to support the ALJ's determination that the claimant's left upper extremity complaints are related to the claimant's work at Stillwell and not the original compensable condition with the employer here.
Consequently, we perceive no reversible error in the ALJ's determination that the claimant's activity at Stillwell constituted an intervening cause of the left arm problems. Because we conclude that there was substantial evidence supporting the ALJ's denial of the requested benefits it is unnecessary to address the remaining issue of whether issue preclusion and claim preclusion bar the claimant from litigating the claim for medical benefits for the left upper extremity and the claim for TTD benefits commencing July 28, 2005.
IT IS THEREFORE ORDERED that the ALJ's order issued April 18, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ Thomas Schrant
______________________________ Curt Kriksciun
ANNIE M GAUVIN, P.O. BOX 3742, DURANGO, CO, 81302 (Claimant), MICROFILM FMAGING OF DURANGO, Attn: ZANE TRACY, 555 S. CAMINO DE RIO STE A-4, DURANGO, CO, (Employer), STATE FARM FIRE CASUALTY COMPANY, Attn: RHONDA NORRIS, GREELEY, CO, (Insurer), DAWES AND HARRISS, PC, Attn: ELLIOT L. BLOODSWORTH, 572 E. THIRD AVE., DURANGO, CO, (For Claimant).
RUEGSEGGER, SIMONS, Attn: THOMAS M. STERN, C/O: SMITH STERN, LLC, DENVER, CO, (For Respondents).